Addiction to drugs or alcohol constitutes a disability that needs to be accommodated by employers. But that duty to accommodate has its limits.
“This does not mean they are free from any consequences for their actions,” said Stuart Rudner, employment lawyer, mediator, and founder of Rudner Law. “It doesn’t give people carte blanche.”
In June, the Alberta Court of King’s Bench ruled that Lafarge Canada was justified in firing a long-serving superintendent who was involved in a minor vehicle accident at a worksite. Nobody was injured, but the worker subsequently tested positive for THC — the active ingredient in cannabis.
After the positive test, the worker — who was in a safety-sensitive role — refused to undergo a substance abuse assessment or participate in a substance abuse program (SAP), which were part of Lafarge’s drug and alcohol policy. The company was clear that, if he had followed the steps, termination wouldn’t have been on the table.
“Lafarge is required by law to maintain a safe workplace and could not, in the face of a positive drug test, accede to (the worker’s) position that he not be required to participate in the SAP or be subject to random drug testing,” the court said in Quong v. Lafarge Canada Inc.
Rudner said the reasoning is in line with the Supreme Court of Canada’s 2017 ruling in Stewart v. Elk Valley Coal Corp.
In that case, a worker was fired after testing positive for cocaine in the wake of a workplace accident. He was fired without being offered a substance abuse assessment with the court pointing to the company’s “no free accident rule.” It was designed to have a deterrent effect on workplace drug use and “offering (a substance abuse) assessment without termination… would dilute the purpose of the policy,” the court said.
“Both these rulings are very similar in the sense that discipline was imposed, and ultimately the discipline was upheld because the courts drew a really clear distinction between disciplining someone for having a disability or an addiction and for breaching the policy,” said Rudner.
Workers in non-safety sensitive roles
In both the Lafarge and Elk Valley Coal cases, the workers were in safety-sensitive roles. If workers aren’t in roles where safety is a key risk, the outcome could be different, said Rudner.
“If you’re going to discipline someone for a breach of a rule or a policy, you should be able to show that the rule or policy was reasonable in the circumstances,” he said.
“If this was an office worker or, taking it further, somebody who is working remotely from home? Then the same safety concerns wouldn’t exist and so therefore the policy, and the discipline, may not be justifiable.”
Legalization of cannabis
The consumption of cannabis became legal across Canada in October 2018. While many thought that would lead to a host of workplace issues, that simply hasn’t materialized for the most part, said Rudner.
“It has been a few years, and it hasn’t been the source of conflict many people thought it would,” he said.
But anyone who takes the position that, simply because it’s legal, they’re allowed to get high whenever they want — and their employer can’t stop them — would be mistaken.
“It’s no different than alcohol. You can go to the hockey game, and you can have a beer,” said Rudner. “But you can’t go to work and have a beer. Even in the Lafarge case, the judge commented on the fact the worker had used THC before his shift. But it had an impact on his ability to carry his duties out safely during his shift, so that is cause for discipline.”
Discipline versus termination
But cause for discipline does not translate into cause for termination, he said. There needs to be a “contextual assessment” about whether just cause exists or whether some lesser form of discipline is appropriate.
“Just because they did get high, whether they got high at work or arrived high, doesn’t matter either way,” he said. “If there is evidence of addiction, It triggers the duty to accommodate, which is always to the point of undue hardship. Which means there is an expectation the employer may have to endure some hardship.”
That could include allowing an absence to seek treatment or other forms of accommodation, said Rudner.
“This case doesn’t stand for the proposition that you can fire someone in those circumstances, but it does confirm that even someone who’s entitled to accommodation will be held accountable for their actions, especially when they’re in breach of a policy while they’re being accommodated.”
Stuart Rudner
Who pays for treatment/rehab?
Absent something specific in a collective agreement in unionized environments, there is not usually an obligation for an employer to pay for treatment for a worker who requires accommodation.
“Generally speaking, accommodation doesn’t have to cost the employer money, though many forms will.” said Rudner. “Even if it’s a leave of absence, it doesn’t have to be paid. It can be unpaid.”
Employers can certainly choose to provide financial support, and some will provide extensive assistance in the accommodation process, but they don’t have to, he said.
What if a worker refuses a test?
If a worker refuses to submit to a test post-incident, as allowed for in a drug and alcohol policy, the employer’s hands are not tied, said Rudner.
“The usual way to do it is just to say that a refusal to be tested will be treated the same way as a positive test,” he said. “And that’s probably the simplest way to do it.”
Lack of a policy
While most companies have drug and alcohol policies in place, some organizations — particularly smaller ones — might not. That doesn’t mean the employer’s hands are tied.
“You don’t necessarily have to have a policy in place in order to justify disciplinary action,” said Rudner.
A few years ago, while speaking at a conference, he was asked by an attendee about disciplining a worker for sleeping on the job — even if the company didn’t expressly forbid it.
“There are some things that are just common sense, and if someone is impaired at work, you can discipline,” he said.
The benefit of having a policy in place is that it takes away any notion that the worker wasn’t aware the behaviour was inappropriate.
“It also can establish, clearly, what the disciplinary consequences will be, so it gives you more of a roadmap,” he said. “But even if you don’t have a policy, that doesn’t mean that you have to allow people to be impaired while they’re at work.”
For more information about Rudner Law’s Alternative Dispute Resolution, visit https://www.rudnerlaw.ca/alternative-dispute-resolution/. Stuart Rudner can be reached at 416-864-8500 (phone or text) or [email protected].
